FINANCE CODE
CHAPTER 186. DISSOLUTION AND RECEIVERSHIP
SUBCHAPTER A. GENERAL PROVISIONS
§ 186.001. DEFINITION. In this chapter,
"administrative expense" means:
(1) an expense designated as an administrative expense
by Subchapter C or D;
(2) court costs and expenses of operation and
liquidation of a state trust company estate;
(3) wages owed to an employee of a state trust company
for services rendered within three months before the date the state
trust company was closed for liquidation and not exceeding:
(A) $2,000 to each employee; or
(B) another amount set by rules adopted under
this subtitle;
(4) current wages owed to a state trust company
employee whose services are retained by the receiver for services
rendered after the date the state trust company is closed for
liquidation;
(5) an unpaid expense of supervision or
conservatorship of the state trust company before its closing for
liquidation; and
(6) any unpaid fees or assessments owed to the
department.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.002. REMEDIES EXCLUSIVE. (a) Unless the banking
commissioner so requests, a court may not:
(1) order the closing or suspension of operation of a
state trust company; or
(2) appoint for a state trust company a receiver,
supervisor, conservator, or liquidator, or other person with
similar responsibility.
(b) A person may not be designated receiver, supervisor,
conservator, or liquidator without the voluntary approval and
concurrence of the banking commissioner.
(c) This chapter prevails over any other conflicting law of
this state.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.003. FEDERAL DEPOSIT INSURANCE CORPORATION AS
LIQUIDATOR. (a) The banking commissioner without court action
may tender a state trust company that has been closed for
liquidation to the Federal Deposit Insurance Corporation or its
successor as receiver and liquidating agent if the trust deposits
of the state trust company were insured by the Federal Deposit
Insurance Corporation or its successor on the date of closing.
(b) After acceptance of tender of the state trust company,
the Federal Deposit Insurance Corporation or its successor shall
perform the acts and duties as receiver of the state trust company
that it considers necessary or desirable and that are permitted or
required by federal law or this chapter.
(c) If the Federal Deposit Insurance Corporation or its
successor refuses to accept tender of the state trust company, the
banking commissioner shall act as receiver.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.004. APPOINTMENT OF INDEPENDENT
RECEIVER. (a) On request of the banking commissioner, the court
in which a liquidation proceeding is pending may:
(1) appoint an independent receiver; and
(2) require a suitable bond of the independent
receiver.
(b) On appointment of an independent receiver, the banking
commissioner is discharged as receiver and remains a party to the
liquidation proceeding with standing to initiate or contest any
motion. The views of the banking commissioner are entitled to
deference unless they are inconsistent with the plain meaning of
this chapter.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.005. SUCCESSION OF TRUST POWERS. (a) If a state
trust company in the process of voluntary or involuntary
dissolution and liquidation is acting as trustee, guardian,
executor, administrator, or escrow agent, or in another fiduciary
or custodial capacity, the banking commissioner may authorize the
sale of the state trust company's administration of fiduciary
accounts to a successor entity with fiduciary powers.
(b) The successor entity, without the necessity of action by
a court or the creator or a beneficiary of the fiduciary
relationship, shall:
(1) continue the office, trust, or fiduciary
relationship; and
(2) perform all the duties and exercise all the powers
connected with or incidental to the fiduciary relationship as if
the successor entity had been originally designated as the
fiduciary.
(c) This section applies to all fiduciary relationships,
including a trust established for the benefit of a minor by court
order under Section 142.005, Property Code. This section does not
affect any right of a court or a party to the instrument governing
the fiduciary relationship to subsequently designate another
trustee as the successor fiduciary.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
SUBCHAPTER B. VOLUNTARY DISSOLUTION
§ 186.101. INITIATING VOLUNTARY DISSOLUTION. (a) A
state trust company may initiate voluntary dissolution and
surrender its charter as provided by this subchapter:
(1) with the approval of the banking commissioner;
(2) after complying with the provisions of the Texas
Business Corporation Act regarding board and shareholder approval
for voluntary dissolution; and
(3) by filing the notice of dissolution as provided by
Section 186.102.
(b) The shareholders or participants of a state trust
company initiating voluntary dissolution by resolution shall
appoint one or more persons to act as liquidating agent or
committee. The liquidating agent or committee shall conduct the
liquidation as provided by law and under the supervision of the
board. The board, in consultation with the banking commissioner,
shall require the liquidating agent or committee to give a suitable
bond.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.102. FILING RESOLUTIONS WITH BANKING
COMMISSIONER. After resolutions to dissolve and liquidate a state
trust company have been adopted by the board and shareholders or
participants, a majority of the directors, managers, or managing
participants shall verify and file with the banking commissioner
duplicate certified copies of:
(1) the resolutions of the shareholders or
participants that:
(A) are adopted at a meeting for which proper
notice was given or by unanimous written consent; and
(B) approve the dissolution and liquidation of
the state trust company;
(2) the resolutions of the board approving the
dissolution and liquidation of the state trust company if the trust
company is operated by a board of directors or managers;
(3) a copy of the notice to the shareholders or
participants informing them of the meeting described by Subdivision
(1)(A); and
(4) a plan of liquidation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.103. BANKING COMMISSIONER INVESTIGATION AND
CONSENT. The banking commissioner shall review the documentation
submitted under Section 186.102 and conduct any necessary
investigation or examination. If the proceedings appear to have
been properly conducted and the bond to be given by the liquidating
agent or committee is adequate for its purposes, the banking
commissioner shall consent to dissolution and direct the state
trust company to publish notice of its pending dissolution.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.104. NOTICE OF PENDING DISSOLUTION. (a) A state
trust company shall publish notice of its pending dissolution in a
newspaper of general circulation in each community where its home
office or an additional trust office is located:
(1) at least once each week for eight consecutive
weeks; or
(2) at other times specified by the banking
commissioner or rules adopted under this subtitle.
(b) The notice must:
(1) be in the form and include the information
required by the banking commissioner; and
(2) state that:
(A) the state trust company is liquidating;
(B) clients, depositors, and creditors must
present their claims for payment on or before a specific date; and
(C) all safe deposit box holders and bailors of
property left with the state trust company should remove their
property on or before a specified date.
(c) The dates selected by the state trust company under
Subsection (b) must:
(1) be approved by the banking commissioner;
(2) allow the affairs of the state trust company to be
wound up as quickly as feasible; and
(3) allow creditors, clients, and owners of property
adequate time for presentation of claims, withdrawal of accounts,
and redemption of property.
(d) The banking commissioner may adjust the dates under
Subsection (b) with or without republication of notice if
additional time appears needed for the activities to which the
dates pertain.
(e) At the time of or promptly after publication of the
notice, the state trust company shall mail to each of the state
trust company's known clients, depositors, creditors, safe deposit
box holders, and bailors of property left with the state trust
company, at the mailing address shown on the state trust company's
records, an individual notice containing:
(1) the information required in a notice under
Subsection (b); and
(2) specific information pertinent to the account or
property of the addressee.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.019(a),
eff. Sept. 1, 2001.
§ 186.105. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
contract between the state trust company and a person for bailment,
of deposit for hire, or for the lease of a safe, vault, or box,
ceases on the date specified in the notice as the date for removal
of property or a later date approved by the banking commissioner. A
person who has paid rental or storage charges for a period extending
beyond the date designated for removal of property has an unsecured
claim against the state trust company for a refund of the unearned
amount paid.
(b) If the property is not removed by the date the contract
ceases, an officer of the state trust company shall inventory the
property. In making the inventory, the officer may open a safe,
vault, box, package, parcel, or receptacle in the custody or
possession of the state trust company. The inventory must be made
in the presence of a notary public who is not an officer or employee
of the state trust company and who is bonded in an amount and by
sureties approved by the banking commissioner. The property shall
be marked to identify, to the extent possible, its owner or the
person who left it with the state trust company.
(c) After all property belonging to others that is in the
state trust company's custody and control has been inventoried, a
master list certified by the state trust company officer and the
notary public shall be furnished to the banking commissioner. The
master list shall be kept in a place and dealt with in a manner the
banking commissioner specifies pending delivery of the property to
its owner or to the comptroller as unclaimed property.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.106. OFFICES TO REMAIN OPEN. Unless the banking
commissioner directs or consents otherwise, the home office and all
additional trust offices of a state trust company initiating
voluntary dissolution shall remain open for business during normal
business hours until the last date specified in published notices
for presentation of claims, withdrawal of accounts, and redemption
of property.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.020(a),
eff. Sept. 1, 2001.
§ 186.107. FIDUCIARY ACTIVITIES. (a) As soon as
practicable after publication of the notice of dissolution, the
state trust company shall:
(1) terminate all fiduciary positions it holds;
(2) surrender all property held by it as a fiduciary;
and
(3) settle its fiduciary accounts.
(b) Unless all fiduciary accounts are settled and
transferred by the last date specified in published notices or by
the banking commissioner and unless the banking commissioner
directs otherwise, the state trust company shall mail a notice to
each trustor and beneficiary of any remaining trust, escrow
arrangement, or other fiduciary relationship. The notice must
state:
(1) the location of an office open during normal
business hours where administration of the remaining fiduciary
accounts will continue until settled or transferred; and
(2) a telephone number at that office.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.108. FINAL LIQUIDATION. (a) After the state
trust company has taken all of the actions specified by Sections
186.102, 186.104, 186.105, and 186.107, paid all its debts and
obligations, and transferred all property for which a legal
claimant has been found after the time for presentation of claims
has expired, the state trust company shall make a list from its
books of the names of each depositor, creditor, owner of personal
property in the state trust company's possession or custody, or
lessee of any safe, vault, or box, who has not claimed or has not
received a deposit, debt, dividend, interest, balance, or other
amount or property due to the person. The list must be sworn to or
affirmed by a majority of the board or managing participants of the
state trust company.
(b) The state trust company shall:
(1) file the list and any necessary identifying
information with the banking commissioner;
(2) pay any unclaimed money and deliver any unclaimed
property to the comptroller as provided by Chapter 74, Property
Code; and
(3) certify to the banking commissioner that the
unclaimed money has been paid and unclaimed property has been
delivered to the comptroller.
(c) After the banking commissioner has reviewed the list and
has reconciled the unclaimed cash and property with the amounts of
money and property reported and transferred to the comptroller, the
banking commissioner shall allow the state trust company to
distribute the state trust company's remaining assets, if any,
among its shareholders, participants, or participant-transferees
as their ownership interests appear.
(d) After distribution of all remaining assets under
Subsection (c), the state trust company shall file with the
department:
(1) an affidavit and schedules sworn to or affirmed by
a majority of the board or managing participants, showing the
distribution to each shareholder, participant, or
participant-transferee;
(2) all copies of reports of examination of the state
trust company in its possession;
(3) its original charter or an affidavit stating that
the original charter is lost; and
(4) any certificates of authority for additional trust
offices.
(e) After verifying the submitted information and
documents, the banking commissioner shall issue a certificate
canceling the charter of the state trust company.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.021(a),
eff. Sept. 1, 2001.
§ 186.109. APPLICATION OF LAW TO STATE TRUST COMPANY IN
DISSOLUTION. A state trust company in the process of voluntary
dissolution and liquidation remains subject to this subtitle,
including provisions for examination by the banking commissioner,
and the state trust company shall furnish reports required by the
banking commissioner.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.110. AUTHORIZATION OF DEVIATION FROM
PROCEDURES. The banking commissioner may authorize a deviation
from the procedures for voluntary dissolution provided by this
subchapter if the banking commissioner determines that the
interests of claimants are not jeopardized by the deviation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.111. CLOSURE BY BANKING COMMISSIONER FOR
INVOLUNTARY DISSOLUTION AND LIQUIDATION. The banking commissioner
may close the state trust company for involuntary dissolution and
liquidation under this chapter if the banking commissioner
determines that:
(1) the voluntary liquidation is:
(A) being conducted in an improper or illegal
manner; or
(B) not in the best interests of the state trust
company's clients and creditors; or
(2) the state trust company is insolvent or imminently
insolvent.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.112. APPLICATION FOR NEW CHARTER. After a state
trust company's charter has been voluntarily surrendered and
canceled, the state trust company may not resume business or reopen
except on application for and approval of a new charter.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
SUBCHAPTER C. INVOLUNTARY DISSOLUTION AND LIQUIDATION
§ 186.201. ACTION TO CLOSE STATE TRUST
COMPANY. (a) The banking commissioner may by written order close
and liquidate a state trust company on finding that:
(1) the interests of its clients and creditors are
jeopardized by the state trust company's insolvency or imminent
insolvency; and
(2) the best interests of clients and creditors would
be served by requiring that the state trust company be closed and
its assets liquidated.
(b) A majority of the state trust company's directors,
managers, or managing participants may voluntarily close the state
trust company and place it with the banking commissioner for
liquidation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 412, § 3.12, eff.
Sept. 1, 2001.
§ 186.202. NOTICE AND EFFECT OF CLOSURE; APPOINTMENT OF
RECEIVER. (a) After closing a state trust company under Section
186.201, the banking commissioner shall attach to or otherwise
display at its main entrance a copy of the written closing order
issued under Section 186.201(a) and containing the findings on
which the closing of the state trust company is based. A
correspondent bank of the closed state trust company may not pay an
item drawn on the account of the closed state trust company that is
presented for payment after the correspondent has received actual
notice of closing unless it previously certified the item for
payment.
(b) As soon as practicable after posting the closing order
at the state trust company's main entrance, the banking
commissioner shall tender the state trust company to the Federal
Deposit Insurance Corporation as provided by Section 186.003 or
initiate a receivership proceeding by filing a certified copy of
the closing order in district court in Travis County, subject to
Subsection (c). The court in which the closing order is filed shall
docket it as a case styled, "In re liquidation of ____" (inserting
the name of the state trust company). When the closing order is
filed, the court has constructive custody of all the state trust
company's assets and any action that seeks to directly or
indirectly affect state trust company assets is considered an
intervention in the receivership proceeding and subject to this
subchapter and Subchapter D.
(c) Venue for an action instituted to effect, contest, or
intervene in the liquidation of a state trust company is in Travis
County, except that on motion filed and served concurrently with or
before the filing of the answer, the court may, on a finding of good
cause, transfer the action to the county of the state trust
company's home office.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 412, § 3.13, eff.
Sept. 1, 2001.
§ 186.203. NATURE AND DURATION OF
RECEIVERSHIP. (a) The court may not require a bond from the
banking commissioner as receiver.
(b) A reference in this chapter to the receiver is a
reference to the banking commissioner as receiver and to any
successors in office, the Federal Deposit Insurance Corporation if
acting as receiver as provided by Section 186.003 and federal law,
or an independent receiver appointed at the request of the banking
commissioner as provided by Section 186.004.
(c) The receiver has all the powers of the directors,
managers, managing participants, officers, and shareholders or
participants of the state trust company as necessary to support an
action taken on behalf of the state trust company.
(d) The receiver and all employees and agents acting on
behalf of the receiver are acting in an official capacity and are
protected by Section 12.106. An act of the receiver is an act of the
state trust company in liquidation. This state or a political
subdivision of this state is not liable and may not be held
accountable for any debt or obligation of a state trust company in
receivership.
(e) Section 64.072, Civil Practice and Remedies Code,
applies to the receivership of a state trust company except as
provided by this subsection. A state trust company receivership
shall be administered continuously for the length of time necessary
to complete its purposes, and a period prescribed by other law
limiting the time for the administration of a receivership or of
corporate affairs generally, including Section 64.072(d), Civil
Practice and Remedies Code, does not apply.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.204. CONTEST OF LIQUIDATION. (a) A state trust
company, acting through a majority of its directors, managers, or
managing participants, may intervene in an action filed by the
banking commissioner closing a state trust company to challenge the
banking commissioner's closing of the state trust company and to
enjoin the banking commissioner or other receiver from liquidating
its assets. The state trust company must file the intervention not
later than the second business day after the closing of the state
trust company, excluding legal holidays. The court may issue an ex
parte order restraining the receiver from liquidating state trust
company assets pending a hearing on the injunction. The receiver
shall comply with the restraining order but may petition the court
for permission to liquidate an asset as necessary to prevent its
loss or diminution pending the outcome of the injunction action.
(b) The court shall hear an action under Subsection (a) as
quickly as possible and shall give it priority over other business.
(c) The state trust company or receiver may appeal the
court's judgment as in other civil cases, except that the receiver
shall retain all state trust company assets pending a final
appellate court order even if the banking commissioner does not
prevail in the trial court. If the banking commissioner prevails in
the trial court, liquidation of the state trust company may proceed
unless the trial court or appellate court orders otherwise. If
liquidation is enjoined or stayed pending appeal, the trial court
retains jurisdiction to permit liquidation of an asset as necessary
to prevent its loss or diminution pending the outcome of the appeal.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.205. NOTICE OF STATE TRUST COMPANY
CLOSING. (a) As soon as reasonably practicable after initiation
of the receivership proceeding, the receiver shall publish notice,
in a newspaper of general circulation in each community where the
state trust company's home office or any additional trust office is
located. The notice must state that:
(1) the state trust company has been closed for
liquidation;
(2) clients and creditors must present their claims
for payment on or before a specific date; and
(3) all safe deposit box holders and bailors of
property left with the state trust company should remove their
property not later than a specified date.
(b) A date that the receiver selects under Subsection (a):
(1) may not be earlier than the 121st day after the
date of the notice; and
(2) must allow:
(A) the affairs of the state trust company to be
wound up as quickly as feasible; and
(B) creditors, clients, and owners of property
adequate time for presentation of claims, withdrawal of accounts,
and redemption of property.
(c) The receiver may adjust the dates under Subsection (a)
with the approval of the court and with or without republication of
notice if additional time appears needed for those activities.
(d) As soon as reasonably practicable given the state of
state trust company records and the adequacy of staffing, the
receiver shall mail to each of the state trust company's known
clients, creditors, safe deposit box holders, and bailors of
property left with the state trust company, at the mailing address
shown on the state trust company's records, an individual notice
containing the information required in a notice under Subsection
(a) and specific information pertinent to the account or property
of the addressee.
(e) The receiver may determine the form and content of
notices under this section.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.022(a),
eff. Sept. 1, 2001.
§ 186.206. INVENTORY. As soon as reasonably
practicable given the state of state trust company records and the
adequacy of staffing, the receiver shall prepare a comprehensive
inventory of the state trust company's assets for filing with the
court. The inventory is open to inspection.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.207. RECEIVER'S TITLE AND PRIORITY. (a) The
receiver has the title to all the state trust company's property,
contracts, and rights of action, wherever located, beginning on the
date the state trust company is closed for liquidation.
(b) The rights of the receiver have priority over a
contractual lien or statutory landlord's lien under Chapter 54,
Property Code, judgment lien, attachment lien, or voluntary lien
that arises after the date of the closing of the state trust company
for liquidation.
(c) The filing or recording of a receivership order in a
record office of this state gives the same notice that would be
given by a deed, bill of sale, or other evidence of title filed or
recorded by the state trust company in liquidation. The recording
clerk shall index a recorded receivership order in the records to
which the order relates.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.208. RIGHTS FIXED. The rights and liabilities of
the state trust company in liquidation and of a client, creditor,
officer, director, manager, managing participant, employee,
shareholder, participant, participant-transferee, agent, or other
person interested in the state trust company's estate are fixed on
the date of closing of the state trust company for liquidation
except as otherwise directed by the court or as expressly provided
otherwise by this subchapter or Subchapter D.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.209. DEPOSITORIES. (a) The receiver may deposit
money collected on behalf of the state trust company estate in:
(1) the Texas Treasury Safekeeping Trust Company in
accordance with procedures established by the comptroller; or
(2) one or more depository institutions in this state,
the deposits of which are insured by the Federal Deposit Insurance
Corporation or its successor, if the receiver, using sound
financial judgment, determines that it would be advantageous to do
so.
(b) If receivership money deposited in an account at a state
bank exceeds the maximum insured amount, the receiver shall require
the excess deposit to be adequately secured through pledge of
securities or otherwise, without approval of the court. The
depository bank may secure the deposits of the state trust company
in liquidation on behalf of the receiver, notwithstanding any other
provision of this subtitle.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.210. PENDING LAWSUIT. (a) A judgment or order of
a court of this state or of another jurisdiction in an action
pending by or against the state trust company, rendered after the
date the state trust company was closed for liquidation, is not
binding on the receiver unless the receiver was made a party to the
suit.
(b) Before the first anniversary of the date the state trust
company was closed for liquidation, the receiver may not be
required to plead to any suit pending against the state trust
company in a court in this state on the date the state trust company
was closed for liquidation and in which the receiver is a proper
plaintiff or defendant.
(c) Sections 64.052, 64.053, and 64.056, Civil Practice and
Remedies Code, do not apply to a state trust company estate being
administered under this subchapter and Subchapter D.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.211. NEW LAWSUIT. (a) Except as otherwise
provided by this section, the court in which a receivership
proceeding is pending under this subchapter has exclusive
jurisdiction to hear and determine all actions or proceedings
instituted by or against the state trust company or receiver after
the receivership proceeding begins.
(b) The receiver may file in any jurisdiction an ancillary
suit that may be helpful to obtain jurisdiction or venue over a
person or property.
(c) Exclusive venue lies in Travis County for an action or
proceeding instituted against the receiver or the receiver's
employee, including an employee of the department, that asserts
personal liability on the part of the receiver or employee.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.212. OBTAINING RECORD OR OTHER PROPERTY IN
POSSESSION OF OTHER PERSON. (a) Each state trust company
affiliate, officer, director, manager, managing participant,
employee, shareholder, participant, participant-transferee,
trustee, agent, servant, employee, attorney, attorney-in-fact, or
correspondent shall immediately deliver to the receiver, without
cost to the receiver, any record or other property of the state
trust company or that relates to the business of the state trust
company.
(b) If by contract or otherwise a record or other property
that can be copied is the property of a person listed in Subsection
(a), it shall be copied and the copy shall be delivered to the
receiver. The owner shall retain the original until notification
by the receiver that it is no longer required in the administration
of the state trust company's estate or until another time the court,
after notice and hearing, directs. The copy is considered to be a
record of the state trust company in liquidation under Section
186.225.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.213. INJUNCTION IN AID OF LIQUIDATION. (a) On
application by the receiver, the court with or without notice may
issue an injunction:
(1) restraining each state trust company officer,
director, manager, managing participant, employee, shareholder,
participant, participant-transferee, trustee, agent, servant,
employee, attorney, attorney-in-fact, accountant or accounting
firm, correspondent, or other person from transacting the state
trust company's business or wasting or disposing of its property;
or
(2) requiring the delivery of the state trust
company's property or assets to the receiver subject to the further
order of the court.
(b) At any time during a proceeding under this subchapter,
the court may issue another injunction or order considered
necessary or desirable to prevent:
(1) interference with the receiver or the proceeding;
(2) waste of the assets of the state trust company;
(3) the beginning or prosecution of an action;
(4) the obtaining of a preference, judgment,
attachment, garnishment, or other lien; or
(5) the making of a levy against the state trust
company or against its assets.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.214. SUBPOENA. (a) The receiver may request the
court ex parte to issue a subpoena to compel the attendance and
testimony of a witness before the receiver and the production of a
record relating to the receivership estate. For that purpose the
receiver or the receiver's designated representative may
administer an oath or affirmation, examine a witness, or receive
evidence. The court has statewide subpoena power and may compel
attendance and production of a record before the receiver at the
state trust company, the office of the receiver, or another
location.
(b) A person served with a subpoena under this section may
file a motion with the court for a protective order as provided by
Rule 166b, Texas Rules of Civil Procedure. In a case of
disobedience of a subpoena or the contumacy of a witness appearing
before the receiver or the receiver's designated representative,
the receiver may request and the court may issue an order requiring
the person subpoenaed to obey the subpoena, give evidence, or
produce a record relating to the matter in question.
(c) A witness who is required to appear before the receiver
is entitled to receive:
(1) reimbursement for mileage, in the amount for
travel by a state employee, for traveling to or returning from a
proceeding that is more than 25 miles from the witness's residence;
and
(2) a fee for each day or part of a day the witness is
necessarily present as a witness in an amount set by the receiver
with the approval of the court of not less than $10 a day and not
more than an amount equal to the per diem travel allowance of a
state employee.
(d) A payment of fees under Subsection (c) is an
administrative expense.
(e) The receiver may serve the subpoena or have it served by
the receiver's authorized agent, a sheriff, or a constable. The
sheriff's or constable's fee for serving a subpoena must be the same
as the fee paid the sheriff or constable for similar services.
(f) A subpoena issued under this section to a financial
institution is not subject to Section 59.006.
(g) On certification by the receiver under official seal, a
record produced or testimony taken as provided by this section and
held by the receiver is admissible in evidence in any case without
proof of its correctness or other proof, except the certificate of
the receiver that the record or testimony was received from the
person producing the record or testifying. The certified record or
a certified copy of the record is prima facie evidence of the facts
it contains. This section does not limit another provision of this
subchapter, Subchapter D, or another law that provides for the
admission of evidence or its evidentiary value.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.103(f),
eff. Sept. 1, 2001.
§ 186.215. EXECUTORY CONTRACT; ORAL
AGREEMENT. (a) Not later than six months after the date the
receivership proceeding begins, the receiver may terminate any
executory contract to which the state trust company is a party or
any obligation of the state trust company as a lessee. A lessor who
receives notice of the receiver's election to terminate the lease
before the 60th day before the termination date is not entitled to
rent or damages for termination, other than rent accrued to the date
of termination.
(b) An agreement that tends to diminish or defeat the
interest of the estate in a state trust company asset is not valid
against the receiver unless the agreement:
(1) is in writing;
(2) was executed by the state trust company and any
person claiming an adverse interest under the agreement, including
the obligor, when the state trust company acquired the asset;
(3) was approved by the board of the state trust
company or its designated committee, and the approval is reflected
in the minutes of the board or committee; and
(4) has been continuously since its execution an
official record of the state trust company.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.216. PREFERENCES. (a) A transfer of or lien on
the property or assets of a state trust company is voidable by the
receiver if the transfer or lien:
(1) was made or created after:
(A) four months before the date the state trust
company is closed for liquidation; or
(B) one year before the date the state trust
company is closed for liquidation if the receiving creditor was at
the time an affiliate, officer, director, manager, managing
participant, principal shareholder, or participant of the state
trust company or an affiliate of the trust company;
(2) was made or created with the intent of giving to a
creditor or depositor, or enabling a creditor or depositor to
obtain, a greater percentage of the claimant's debt than is given or
obtained by another claimant of the same class; and
(3) is accepted by a creditor or depositor having
reasonable cause to believe that a preference will occur.
(b) Each state trust company officer, director, manager,
managing participant, employee, shareholder, participant,
participant-transferee, trustee, agent, servant, employee,
attorney-in-fact, or correspondent, or other person acting on
behalf of the state trust company, who has participated in
implementing a voidable transfer or lien, and each person receiving
property or the benefit of property of the state trust company as a
result of the voidable transfer or lien, is personally liable for
the property or benefit received and shall account to the receiver
for the benefit of the clients and creditors of the state trust
company.
(c) The receiver may avoid a transfer of or lien on the
property or assets of a state trust company that a client, creditor,
shareholder, participant, or participant-transferee of the state
trust company could have avoided and may recover the property
transferred or its value from the person to whom it was transferred
or from a person who has received it unless the transferee or
recipient was a bona fide holder for value before the date the state
trust company was closed for liquidation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.217. EMPLOYEES OF RECEIVER. The receiver may
employ agents, legal counsel, accountants, appraisers,
consultants, and other personnel the receiver considers necessary
to assist in the performance of the receiver's duties. The receiver
may use personnel of the department if the receiver considers the
use to be advantageous or desirable. The expense of employing those
persons is an administrative expense.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.218. DISPOSAL OF PROPERTY; SETTLING OF
CLAIM. (a) In liquidating a state trust company, the receiver on
order of the court entered with or without hearing may:
(1) sell all or part of the property of the state trust
company;
(2) borrow money and pledge all or part of the assets
of the state trust company to secure the debt created, except that
the receiver may not be held personally liable to repay borrowed
funds;
(3) compromise or compound a doubtful or uncollectible
debt or claim owed by or owing to the state trust company; and
(4) enter another agreement on behalf of the state
trust company that the receiver considers necessary or proper to
the management, conservation, or liquidation of its assets.
(b) If the amount of a debt or claim owed by or owing to the
state trust company or the value of an item of property of the trust
company does not exceed $20,000, excluding interest, the receiver
may compromise or compound the debt or claim or sell the property on
terms the receiver considers to be in the best interest of the state
trust company estate without obtaining the approval of the court.
(c) With the approval of the court, the receiver may sell or
offer or agree to sell an asset of the state trust company, other
than a fiduciary asset, to a depositor or creditor of the state
trust company. Payment may be in whole or in part out of
distributions payable to the purchasing creditor or depositor on
account of an approved claim against the state trust company's
estate. On application by the receiver, the court may designate one
or more representatives to act for certain clients or creditors as a
class in the purchase, holding, and management of assets purchased
by the class under this section, and the receiver may with the
approval of the court advance the expenses of the appointed
representative against the security of the claims of the class.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.219. COURT ORDER; NOTICE AND HEARING. If the
court requires notice and hearing before entering an order, the
court shall set the time and place of the hearing and prescribe
whether the notice is to be given by service on specific parties, by
publication, or by a combination of those methods. The court may
not enter an order requested by a person other than the receiver
without notice to the receiver and an opportunity for the receiver
to be heard.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.220. RECEIVER'S REPORTS; EXPENSES. (a) The
receiver shall file with the court:
(1) a quarterly report showing the operation,
receipts, expenditures, and general condition of the state trust
company in liquidation; and
(2) a final report regarding the liquidated state
trust company showing all receipts and expenditures and giving a
full explanation and a statement of the disposition of all assets of
the state trust company.
(b) The receiver shall pay all administrative expenses out
of money or other assets of the state trust company. Each quarter
the receiver shall swear to and submit to the court an itemized
report of those expenses. The court shall approve the report unless
an objection is filed before the 11th day after the date it is
submitted. An objection may be made only by a party in interest and
must specify each item objected to and the ground for the objection.
The court shall set the objection for hearing and notify the parties
of this action. The objecting party has the burden of proof to show
that the item objected to is improper, unnecessary, or excessive.
(c) The court may prescribe whether the notice of the
receiver's report is to be given by service on specific parties, by
publication, or by a combination of those methods.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.221. COURT-ORDERED AUDIT. (a) The court may
order an audit of the books and records of the receiver that relate
to the receivership. A report of an audit ordered under this
section shall be filed with the court. The receiver shall make the
books and records relating to the receivership available to the
auditor as required by the court order.
(b) The receiver shall pay the expenses of an audit ordered
under this section as an administrative expense.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.222. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
contract between the state trust company and another person for
bailment, of deposit for hire, or for the lease of a safe, vault, or
box ceases on the date specified for removal of property in the
notices that were published and mailed or a later date approved by
the receiver or the court. A person who has paid rental or storage
charges for a period extending beyond the date designated for
removal of property has a claim against the state trust company
estate for a refund of the unearned amount paid.
(b) If the property is not removed by the date the contract
ceases, the receiver shall inventory the property. In making the
inventory, the receiver may open a safe, vault, or box, or any
package, parcel, or receptacle, in the custody or possession of the
receiver. The property shall be marked to identify, to the extent
possible, its owner or the person who left it with the state trust
company. After all property belonging to others that is in the
receiver's custody and control has been inventoried, the receiver
shall compile a master list that is divided for each office of the
state trust company that received property that remains unclaimed.
The receiver shall publish, in a newspaper of general circulation
in each community in which the state trust company had an office
that received property that remains unclaimed, the list and the
names of the owners of the property as shown in the state trust
company's records. The published notice shall specify a procedure
for claiming the property unless the court, on application of the
receiver, approves an alternate procedure.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.223. FIDUCIARY ACTIVITIES. (a) As soon after
beginning the receivership proceeding as is practicable, the
receiver shall:
(1) terminate all fiduciary positions the state trust
company holds;
(2) surrender all property held by the state trust
company as a fiduciary; and
(3) settle the state trust company's fiduciary
accounts.
(b) The receiver shall release all segregated and
identifiable fiduciary property held by the state trust company to
successor fiduciaries.
(c) With the approval of the court, the receiver may sell
the administration of all or substantially all remaining fiduciary
accounts to one or more successor fiduciaries on terms that appear
to be in the best interest of the state trust company's estate and
the persons interested in the fiduciary accounts.
(d) If commingled fiduciary money held by the state trust
company as trustee is insufficient to satisfy all fiduciary claims
to the commingled money, the receiver shall distribute commingled
money pro rata to all fiduciary claimants of commingled money based
on their proportionate interests after payment of administrative
expenses related solely to the fiduciary claims. The fictional
tracing rule does not apply.
(e) The receiver may require a fiduciary claimant to file a
proof of claim if the records of the state trust company are
insufficient to identify the claimant's interest.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.224. DISPOSITION AND MAINTENANCE OF
RECORDS. (a) On approval by the court, the receiver may dispose
of records of the state trust company in liquidation that are
obsolete and unnecessary to the continued administration of the
receivership proceeding.
(b) The receiver may devise a method for the effective,
efficient, and economical maintenance of the records of the state
trust company and of the receiver's office. The methods may include
maintaining those records on any medium approved by the records
management division of the Texas State Library.
(c) To maintain the records of the liquidated state trust
company after the closing of the receivership proceeding, the
receiver may reserve assets of an estate, deposit them in an
account, and use them for maintenance, storage, and disposal of
records in closed receivership estates.
(d) Records of a liquidated state trust company are not
government records for any purpose, including Chapter 552,
Government Code, but shall be preserved and disposed of as if they
were records of the department under Chapter 441, Government Code.
Those records are confidential as provided by:
(1) Section 59.006;
(2) Subchapter D, Chapter 181; and
(3) rules adopted under this subtitle
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1420, § 6.103(g),
eff. Sept. 1, 2001.
§ 186.225. RECORDS ADMITTED. (a) A record of a state
trust company in liquidation obtained by the receiver and held in
the course of the receivership proceeding or a certified copy of the
record under the official seal of the receiver is admissible in
evidence in all cases without proof of correctness or other proof,
except the certificate of the receiver that the record was received
from the custody of the state trust company or found among its
effects.
(b) The receiver may certify the correctness of a record of
the receiver's office, including a record described by Subsection
(a), and may certify any fact contained in the record. The record
is admissible in evidence in all cases in which the original would
be evidence.
(c) The original record or a certified copy of the record is
prima facie evidence of the facts it contains.
(d) A copy of an original record or another record that is
maintained on a medium approved by the records management division
of the Texas State Library, within the scope of this section, and
produced by the receiver or the receiver's authorized
representative under this section:
(1) has the same effect as the original record; and
(2) may be used the same as the original record in a
judicial or administrative proceeding in this state.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.226. RESUMPTION OF BUSINESS. (a) A state trust
company closed under Section 186.201 may not be reopened without
the approval of the banking commissioner unless a contest of
liquidation under Section 186.204 is finally resolved adversely to
the banking commissioner and the court authorizes its reopening.
(b) The banking commissioner may place temporary limits on
the right of withdrawals by, or payments to, individual clients and
creditors of a state trust company reopened under this section, in
accordance with applicable law.
(c) As a depositor or creditor of a reopened state trust
company, this state or a political subdivision of this state may
agree to temporary limits that the banking commissioner places on
payments or withdrawals.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.227. ASSETS DISCOVERED AFTER CLOSE OF
RECEIVERSHIP. (a) The banking commissioner shall report to the
court discovery of an asset having value that:
(1) the banking commissioner discovers after the
receivership was closed by final order of the court; and
(2) was abandoned as worthless or unknown during
receivership.
(b) The court may reopen the receivership proceeding for
continued liquidation if the value of the after-discovered assets
justifies the reopening.
(c) If the banking commissioner suspects that the
information concerning after-disclosed assets may have been
intentionally or fraudulently concealed, the banking commissioner
shall notify appropriate civil and criminal authorities to
determine any applicable penalties.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
SUBCHAPTER D. CLAIMS AGAINST RECEIVERSHIP ESTATE
§ 186.301. FILING CLAIM. (a) This section applies
only to a claim by a person, other than a shareholder, participant,
or participant-transferee acting in that capacity, who has a claim
against a state trust company in liquidation, including a claimant
with a secured claim or a claimant under a fiduciary relationship
that has been ordered by the receiver to file a claim pursuant to
Section 186.223.
(b) To receive payment of a claim, the person must present
proof of the claim to the receiver:
(1) at a place specified by the receiver; and
(2) within the period specified by the receiver under
Section 186.205.
(c) Receipt of the required proof of claim by the receiver
is a condition precedent to the payment of the claim.
(d) A claim that is not filed within the period specified by
the receiver may not participate in a distribution of the assets by
the receiver, except that, subject to court approval, the receiver
may accept a claim filed not later than the 180th day after the date
notice of the claimant's right to file a proof of claim is mailed to
the claimant.
(e) A claim accepted under this section and approved is
subordinate to an approved claim of a general creditor.
(f) Interest does not accrue on a claim after the date the
state trust company is closed for liquidation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.302. PROOF OF CLAIM. (a) A proof of claim must
be in writing, be signed by the claimant, and include:
(1) a statement of the claim;
(2) a description of the consideration for the claim;
(3) a statement of whether collateral is held or a
security interest is asserted against the claim and, if so, a
description of the collateral or security interest;
(4) a statement of any right of priority of payment for
the claim or other specific right asserted by the claimant;
(5) a statement of whether a payment has been made on
the claim and, if so, the amount and source of the payment, to the
extent known by the claimant;
(6) a statement that the amount claimed is justly owed
by the state trust company in liquidation to the claimant; and
(7) any other matter that is required by the court.
(b) The receiver may designate the form of the proof of
claim. A proof of claim must be filed under oath unless the oath is
waived by the receiver. A proof of claim filed with the receiver is
considered filed in an official proceeding for purposes of Chapter
37, Penal Code.
(c) If a claim is founded on a written instrument, the
original instrument, unless lost or destroyed, must be filed with
the proof of claim. After the instrument is filed, the receiver may
permit the claimant to substitute a copy of the instrument until the
final disposition of the claim. If the instrument is lost or
destroyed, a statement of that fact and of the circumstances of the
loss or destruction must be filed under oath with the claim.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.303. JUDGMENT AS PROOF OF CLAIM. (a) A judgment
entered against a state trust company in liquidation before the
date the state trust company was closed for liquidation may not be
given higher priority than a claim of an unsecured creditor unless
the judgment creditor in a proof of claim proves the allegations
supporting the judgment to the receiver's satisfaction.
(b) A judgment against the state trust company taken by
default or by collusion before the date the state trust company was
closed for liquidation may not be considered as conclusive evidence
of the liability of the state trust company to the judgment creditor
or of the amount of damages to which the judgment creditor is
entitled.
(c) A judgment against the state trust company entered after
the date the state trust company was closed for liquidation may not
be considered as evidence of liability or of the amount of damages.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.304. SECURED CLAIM. (a) The owner of a secured
deposit may file a claim as a creditor against a state trust company
in liquidation. The value of security shall be determined under
supervision of the court by converting the security into money.
(b) The owner of a secured claim against a state trust
company in liquidation may:
(1) surrender the security and file a claim as a
general creditor; or
(2) apply the security to the claim and discharge the
claim.
(c) If the owner applies the security and discharges the
claim under Subsection (b), any deficiency shall be treated as a
claim against the general assets of the state trust company on the
same basis as a claim of an unsecured creditor. The amount of the
deficiency shall be determined as provided by Section 186.305,
except that if the amount of the deficiency has been adjudicated by
a court in a proceeding in which the receiver has had notice and an
opportunity to be heard, the court's decision is conclusive as to
the amount.
(d) The value of security held by a secured creditor shall
be determined under supervision of the court by:
(1) converting the security into money according to
the terms of the agreement under which the security was delivered to
the creditor; or
(2) agreement, arbitration, compromise, or litigation
between the creditor and the receiver.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.305. UNLIQUIDATED OR UNDETERMINED CLAIM. (a) A
claim based on an unliquidated or undetermined demand shall be
filed within the period provided by Subchapter C for the filing of a
claim. The claim may not share in any distribution to claimants
until the claim is definitely liquidated, determined, and allowed.
After the claim is liquidated, determined, and allowed, the claim
shares ratably with the claims of the same class in all subsequent
distributions.
(b) For the purposes of this section, a demand is considered
unliquidated or undetermined if the right of action on the demand
accrued while a state trust company was closed for liquidation and
the liability on the demand has not been determined or the amount of
the demand has not been liquidated.
(c) If the receiver in all other respects is in a position to
close the receivership proceeding, the proposed closing is
sufficient grounds for the rejection of any remaining claim based
on an unliquidated or undetermined demand. The receiver shall
notify the claimant of the intention to close the proceeding. If
the demand is not liquidated or determined before the 61st day after
the date of the notice, the receiver may reject the claim.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.306. SET-OFF. (a) Mutual credits and mutual
debts shall be set off and only the balance allowed or paid, except
that a set-off may not be allowed in favor of a person if:
(1) the obligation of a state trust company to the
person on the date the state trust company was closed for
liquidation did not entitle the person to share as a claimant in the
assets of the state trust company;
(2) the obligation of the state trust company to the
person was purchased by or transferred to the person after the date
the state trust company was closed for liquidation or for the
purpose of increasing set-off rights; or
(3) the obligation of the person or the state trust
company is as a trustee or fiduciary.
(b) On request, the receiver shall provide a person with an
accounting statement identifying each debt that is due and payable.
A person who owes a state trust company an amount that is due and
payable against which the person asserts set-off of mutual credits
that may become due and payable from the state trust company in the
future shall promptly pay to the receiver the amount due and
payable. The receiver shall promptly refund, to the extent of the
person's prior payment, mutual credits that become due and payable
to the person by the state trust company in liquidation.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.307. ACTION ON CLAIM. (a) Not later than six
months after the last day permitted for the filing of claims or a
later date allowed by the court, the receiver shall accept or reject
in whole or in part each claim filed against the state trust company
in liquidation, except for an unliquidated or undetermined claim
governed by Section 186.305. The receiver shall reject a claim if
the receiver doubts its validity.
(b) The receiver shall mail written notice to each claimant,
specifying the disposition of the person's claim. If a claim is
rejected in whole or in part, the receiver in the notice shall
specify the basis for rejection and advise the claimant of the
procedures and deadline for appeal.
(c) The receiver shall send each claimant a summary schedule
of approved and rejected claims by priority class and notify the
claimant:
(1) that a copy of a schedule of claims disposition
including only the name of the claimant, the amount of the claim
allowed, and the amount of the claim rejected is available on
request; and
(2) of the procedure and deadline for filing an
objection to an approved claim.
(d) The receiver or an agent or employee of the receiver,
including an employee of the department, is not liable, and a cause
of action may not be brought against the person, for an act or
omission of the person relating to the adjustment, negotiation, or
settlement of a claim.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.308. OBJECTION TO APPROVED CLAIM. The receiver
with court approval shall set a deadline for an objection to an
approved claim. On or before that date a depositor, creditor, other
claimant, shareholder, participant, or participant-transferee of
the state trust company may file an objection to an approved claim.
The objection shall be heard and determined by the court. If the
objection is sustained, the court shall direct an appropriate
modification of the schedule of claims.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.309. APPEAL OF REJECTED CLAIM. (a) The
receiver's rejection of a claim may be appealed in the court in
which the receivership proceeding is pending. The appeal must be
brought within three months after the date of service of notice of
the rejection.
(b) If the appeal is timely brought, review is de novo as if
it were an action originally filed in the court, and is subject to
the rules of procedure and appeal applicable to civil cases. An
action to appeal rejection of a claim by the receiver is separate
from the receivership proceeding, and may not be initiated by a
claimant intervening in the receivership proceeding.
(c) If the action is not timely brought, the action of the
receiver is final and not subject to review.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.310. PAYMENT OF CLAIM. (a) Except as expressly
provided otherwise by this subchapter or Subchapter C, without the
approval of the court the receiver may not make a payment on a
claim, other than a claim for an obligation incurred by the receiver
for administrative expenses.
(b) The banking commissioner shall deposit in one or more
banks located in this state all money available for the benefit of
nonclaiming depositors and creditors. The banking commissioner
shall pay the depositors or creditors on demand any amount held for
their benefit.
(c) The receiver may periodically make partial distribution
to the holders of approved claims if:
(1) all objections have been heard and decided as
provided by Section 186.308;
(2) the time for filing appeals has expired as
provided by Section 186.309;
(3) money has been made available to provide for the
payment of all nonclaiming depositors and creditors in accordance
with Subsection (b); and
(4) a proper reserve is established for the pro rata
payment of:
(A) rejected claims that have been appealed; and
(B) any claims based on unliquidated or
undetermined demands governed by Section 186.305.
(d) As soon as practicable after the determination of all
objections, appeals, and claims based on previously unliquidated or
undetermined demands governed by Section 186.305 and money has been
made available to provide for the payment of all nonclaiming
depositors and creditors in accordance with Subsection (b), the
receiver shall distribute the assets of the state trust company in
satisfaction of approved claims other than claims asserted in a
person's capacity as a shareholder, participant, or
participant-transferee.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.311. PRIORITY OF CLAIMS AGAINST INSURED STATE
TRUST COMPANY. The distribution of assets from the estate of a
state trust company the trust deposits of which are insured by the
Federal Deposit Insurance Corporation or its successor shall be
made in the same order of priority as assets would be distributed on
liquidation or purchase of assets and assumption of liabilities of
a national bank under federal law.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.312. PRIORITY OF CLAIMS AGAINST UNINSURED STATE
TRUST COMPANY. (a) The priority of distribution of assets from
the estate of a state trust company the trust deposits of which are
not insured by the Federal Deposit Insurance Corporation or its
successor shall be in accordance with the order of each class as
provided by this section. Every claim in each class shall be paid
in full, or adequate money shall be retained for that payment,
before a member of the next class may receive any payment. A
subclass may not be established within a class, except for a
preference or subordination within a class expressly created by
contract or other instrument or in the articles of association.
(b) Assets shall be distributed in the following order of
priority:
(1) administrative expenses;
(2) approved claims of secured trust deposits to the
extent of the value of the security as provided by Section
186.304(a);
(3) approved claims of secured creditors to the extent
of the value of the security as provided by Section 186.304(b);
(4) approved claims by beneficiaries of insufficient
commingled fiduciary money or missing fiduciary property and
approved claims of clients of the state trust company;
(5) other approved claims of general creditors not
falling within a higher priority under this section, including
unsecured claims for taxes and debts due the federal government or a
state or local government;
(6) approved claims of a type described by
Subdivisions (1)-(5) that were not filed within the period
prescribed by this subchapter; and
(7) claims of capital note or debenture holders or
holders of similar obligations and proprietary claims of
shareholders, participants, participant-transferees, or other
owners according to the terms established by issue, class, or
series.
(c) Subject to Sections 186.310 and 186.313, the banking
commissioner may make a ratable distribution to approved claimants
within a particular class or priority if:
(1) all timely filed and approved claims of a higher
priority have been satisfied; and
(2) there is insufficient money to fully satisfy all
of those claims, after reserving money for administrative expenses
as necessary.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.313. EXCESS ASSETS. (a) If state trust company
assets remain after the receiver has provided for unclaimed
distributions and all of the liabilities of the state trust company
in liquidation, the receiver shall distribute the remaining assets
to the shareholders or participants of the state trust company.
(b) If the remaining assets are not liquid or if they
otherwise require continuing administration, the receiver may call
a meeting of the shareholders or participants and
participant-transferees of the state trust company. The receiver
shall give notice of the meeting:
(1) in a newspaper of general circulation in the
county where the home office of the state trust company was located;
and
(2) by written notice to the shareholders or
participants and participant-transferees of record at their last
known addresses.
(c) At the meeting, the shareholders or participants shall
appoint one or more agents to take over the affairs to continue the
liquidation for the benefit of the shareholders or participants and
participant-transferees. Voting privileges are governed by the
state trust company's bylaws and articles of association. If a
quorum cannot be obtained at the meeting, the banking commissioner
shall appoint an agent. An agent appointed under this subsection
shall execute and file with the court a bond approved by the court,
conditioned on the faithful performance of all the duties of the
trust.
(d) Under order of the court the receiver shall transfer and
deliver to one or more agents for continued liquidation under the
court's supervision all assets of the state trust company remaining
in the receiver's hands. The court shall discharge the receiver
from further liability to the state trust company and its clients,
creditors, shareholders, participants, and
participant-transferees.
(e) The state trust company may not resume business and the
charter of the state trust company is void on the date the court
issues the order directing the receiver to transfer and deliver the
remaining assets of the state trust company to one or more agents.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
§ 186.314. UNCLAIMED PROPERTY. After completion of the
liquidation, any unclaimed property remaining with the receiver
shall be delivered to the comptroller as provided by Chapter 74,
Property Code.
Added by Acts 1999, 76th Leg., ch. 62, § 7.16(a), eff. Sept. 1,
1999.
